«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

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Options and Proposals for the International Governance of Geoengineering Treaty. 280 However, not all parties to the Outer Space Treaty are party to the Liability Convention. 281 Moreover, also the latter certain limitations that are relevant to geoengineering technologies.

The Liability Convention provides for two bases for legal claims. 282 Article II Liability Convention provides for ‘absolute’ liability for damage caused ‘by’ space objects ‘on the surface of the Earth’, irrespective of any fault or negligence. Article III provides for fault-based liability for damage caused elsewhere than on the surface of the Earth. The Liability Convention also contains a definition of damage. Damage means, according to Article I (a), ‘loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international organizations’. However, from the wording, it remains unclear whether damage to the earth’s environment in general is covered if they are not considered to be individual or state "property”. 283 Moreover, there is no statement whether direct as well as indirect damage is covered. It has been discussed within the COPUOS whether a clarification in that regard was needed. However, it was decided against further clarification as the extent of the damage covered was considered to be a question of adequate causation. 284 Therefore, the problem of proving causation remains and there is virtually no practice to draw from. 285 Due to all these considerations, Malanczuk concludes that liability for damage to the earth environment caused by space objects which does not clearly constitute a damage as defined in Article I (a) of the Liability Convention does either not exist or is practically impossible to proof. 286 Even the Cosmos 954 incident, in which a Soviet satellite went out of control and crashed on Canadian territory, is inconclusive as state practice. Canada’s claim for damages was based on the Liability Convention and general principles of international law, but it is subject to debate whether the final settlement and payment was an acknowledgment of an international obligation. 287 The Moon Treaty could be of potential relevance for space-based geoengineering technologies as well, although its title might be misleading. Regarding the obligation to prevent environmentally harmful activities in Article 7, its scope is broad as it also includes the earth’s environment. States are obliged to ‘take measures to avoid harmfully affection the environment of the Earth through the introduction of extraterrestrial matter or otherwise.’ However, the obligation only applies to activities that are carried out ‘on’ the moon or on celestial bodies within our solar system (other than earth), and orbits around or trajectories to or around the Kerrest/Smith (2009) 129.

As of April 2012, there were 88 ratifications and 23 signatories of the Liability Convention, see http://www.oosa.unvienna.org/oosa/en/SpaceLaw/treatystatus/index.html.

Malanczuk (1991) speaks of a dual system of liability ( 784).

cf. Proelß/Güssow (2011) 23.

Kerrest/Smith (2009) 141; Malanczuk (1991).

Kerrest /Smith (2009) 143.

Malanczuk (1991) 794.

Cf. references in Malanczuk (1991) 775.

Options and Proposals for the International Governance of Geoengineering moon or those celestial bodies. 288 However, the geoengineering technologies that are discussed so far only involve orbits and trajectories around the earth. Therefore, for the time being, arguably the Moon Treaty does not apply to geoengineering technologies. Moreover, it is of less relevance compared to other space law agreements, as the number of parties is considerably low and does not include main space nations such as the USA, Russia and China. 289 A number of other rules of international space law are generally relevant for geoengineering.

However, none of them seem to be in conflict with space-based geoengineering as such. They are mostly of procedural nature. 290 For instance, there is the obligation to inform about space activities, ‘to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities’ in Article XI Outer Space Treaty. Space objects subject to the Registration Convention need to be registered. According to Article XXI of the Liability Convention, states shall assist other states that suffered a ‘damage caused by a space object [if it] presents a large scale danger to human life or seriously interferes with the living conditions of the population of the functioning of the vital centers.’ In conclusion, there is no international space law that explicitly prohibits space-based geoengineering as such. These techniques are no usual space activities and have not been in the focus of international space law so far. Still, certain obligations and restrictions imposed by international space law are generally applicable to space-based geoengineering as to any other space activity. For instance, geoengineering activities have to be carried out in due regard to other states interest in use of the outer space as well as in a cooperative and mutual manner.

Moreover, space-based geoengineering installations have to be launched and operated in a way that avoids risks and contamination of outer space. Geoengineering experiments that ‘would cause potentially harmful interference with activities of other States’ are subject to prior appropriate international consultation. However, as to environmental obligations and liability, not all potential side-effects and consequences associated with space-based geoengineering techniques are covered by space law – in addition to the fact that not all potential side-effects are fully understood yet. More clarification would be needed. For example, one of the points to clarify would be whether geoengineering installations placed in space constitute ‘extraterrestrial matter’ which must be introduced in a manner not causing adverse changes in the environment of the earth in accordance with Article IX sentence 2 alternative 2 Outer Space Treaty. Another point is whether indirect side effects of space-based geoengineering – According to Article 7, States are obliged “to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise”. They are also obliged to “take measures to avoid harmfully affection the environment of the Earth through the introduction of extraterrestrial matter or otherwise.” As of April 2012, there were 14 parties and 4 signatories of the Liability Convention, see http://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XXIVchapter=24&lang=en#Participants This includes amongst others the information obligation of all space activities in Article XI of the Outer Space Treaty. Moreover, according to the Registration Treaty, space objects that are launched in outer space have to be registered with the UN. Of interest is also the obligation to assist in Article XXI of the Liability Convention.

It rules that “If the damage caused by a object presents a large-scale danger to human life or seriously interferes with the living conditions of the population or the functioning of vital centres, the States Parties, and in particular the launching State, shall examine the possibility of rendering appropriate and rapid assistance to the State which has suffered the damage, when it requests.

Options and Proposals for the International Governance of Geoengineering such as harmful changes to the global hydrology – would qualify as ‘adverse changes in the environment’ or ‘damage’ (see again Article IX sentence 2 alternative 2 Outer Space Treaty and Article VII Outer Space Treaty).

5.1.7 Carbon capture and storage Carbon Capture and Storage (CCS) is a technology that involves the capturing of CO2 from human processes before it is released into the atmosphere. Secondly, the CO2 is transferred and stored in suitable facilities in order to keep it away from atmosphere. Different storage options for the CO2 are available, including geological storage and ocean storage. In applying the latter, captured CO2 can directly be injected either into the water column, deep sea sediments in 3 km depth or on the sea floor. 291 Subsurface storage in geological formations is generally possible on land or under the seabed, either in oil or gas fields, un-minable coal beds, or deep saline formations.

The impacts and risks of CCS on the terrestrial and marine environment vary and depend on the technical process that has been chosen in the individual case. CCS generally involves different steps and processes for the capture, transport, injection of the CO2 and maintenance of its storage. For example, CO2 which has been stored underground could leak and cause ground or sea water pollution and acidification. 292 CO2 injected and stored in the water column could destruct deep seafloor organisms if lakes of liquid CO2 are created. 293 Moreover, there are potential risks and other adverse effects associated with the infrastructure and transport needs of CCS, such as drillings, pipelines or shipping of CO2. 294 The life cycle and climate footprint of the CCS technology as such is another issue. Capture of CO2 from emissions requires a substantial amount of energy, which accounts for additional CO2 emissions if generated in conventional power plants. 295 Moreover, conflicts arising from competitive usages of the underground and its reservoirs (such as for energy storage, geothermal energy) generally need to be taken into consideration.

It is controversial whether CCS should qualify as geoengineering, or rather as mitigation measure (cf. WP1 on definition). Opponents argue that it does not resemble the other geoengineering concepts, as it is an end-of-the-pipe technology, which removes CO2 before released into the atmosphere. Notably, CCS is not included in the CBD’s working definition of geo-engineering. 296 On the other hand, while CCS avoids the actual emission of CO2 into the atmosphere, it does not reduce the production of CO2 in the first place. This is what makes it difficult to classify CCS as mitigation. Since a number of risks – similar to other geoengineering concepts – are associated with CCS, it is conceivable to assess it in the same context. Moreover, the guidance concerning the risk assessment framework for storage in sub-surface geological formations developed under the auspice of the London In a depth lower 3 km, CO2 has a higher dense than water and is expected to form stable “Lakes” Compare for the scientific background to the issue the extensive IPCC Special Report on Carbon Capture and Storage.

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